This is
a § 1983 action brought by Leroy Palmer alleging
negligence and deliberate indifference while an inmate at the
Northern Reception and Classification Center
(“NRC”) located at the Stateville Correctional
Center (“Stateville”). The only defendant
remaining in the case is Craig P. Franz, a registered nurse
formerly employed by Wexford Health Sources
(“Wexford”).[1] For the reasons that follow,
Franz's motion for summary judgment is granted.

Standard

Summary
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The Court
considers the entire evidentiary record and must view all of
the evidence and draw all reasonable inferences from that
evidence in the light most favorable to the nonmovant.
Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013).
To defeat summary judgment, a nonmovant must produce more
than “a mere scintilla of evidence” and come
forward with “specific facts showing that there is a
genuine issue for trial.” Harris N.A. v.
Hershey, 711 F.3d 794, 798 (7th Cir. 2013). Ultimately,
summary judgment is warranted only if a reasonable jury could
not return a verdict for the nonmovant. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Background

Palmer
was an inmate in the IDOC during the relevant time period. On
January 11, 2012, he was transferred from the Shawnee
Correctional Center (“Shawnee”) to the NRC. The
NRC is a facility located at Statesville where an inmate is
temporarily housed when he needs to make a court appearance.
See Verser v. Smith, 2017 WL 528381, at *9 (N.D.
Ill. Feb. 9, 2017). An inmate temporarily assigned to the NRC
does not have his complete medical records with him; they
remain at his home or “parent” institution.
Medical staff at the inmate's parent facility prepare a
“transfer summary” to travel with the inmate to
the NRC, which is supposed to contain information about the
inmate's acute and chronic medical conditions,
significant medical history, current medications and
treatment, and active medical permits. The transfer summary
is reviewed by an intake nurse upon the inmate's arrival
at the NRC. The intake nurse observes the inmate for obvious
signs of illness, asks questions about the inmate's
health history, and then makes notations on the bottom
portion of the transfer summary. The summary is then placed
in the inmate's medical file at the NRC. Franz worked for
Wexford at the Stateville facility from December 2011 through
April 2012, and was the nurse who performed Palmer's
intake screening when he arrived at the NRC. At the time of
Palmer's screening, Franz was new to both performing
intake screenings and to the practice of nursing in general,
having obtained his nursing degree only months earlier.
During the five months he worked at Stateville, he performed
intake screenings on only one or two occasions.

Palmer
was born with a congenital deformity of the left arm.
Essentially, he is missing most of his left
hand.[2] Medical staff at Shawnee made note of
Palmer's missing hand at the top part of his transfer
summary, where on the line marked “Physical
Disabilities/Limitations” it was written: “L
arm not fully developed/low bunk, low gallery/slow eating
pass.”[3] R. 161-6. Palmer testified he told Franz
during the screening that Shawnee had given him a low bunk
permit of indefinite duration, and he needed a low bunk
permit for the NRC because of his missing hand. According to
Palmer, Franz responded that he would need to see a doctor if
he wanted to get a low bunk permit from Stateville. R. 161-2
at 13, 24 (Palmer Dep. 46-47, 90). The entire encounter
between Palmer and Franz lasted no more than ten to fifteen
minutes, and Franz testified at his deposition (which
occurred more than four years later) he had no memory of
Palmer. The transfer summary shows Franz made note at the
bottom of the form on a line marked “Deformities:
Acute/Chronic” that Palmer's left arm was
“not fully developed, ” and that, under the
heading “Plan: Disposition, ” Franz had
marked the box next to “Sick Call:
Routine.” Although the form also gave the option
of choosing “Emergency Referral” or
Sick Call: Urgent, ” Franz did not
check the box next to either of those things. On the line
next to the heading “Current
Medications/Treatment, ” Franz wrote the words
“see above, ” where Shawnee medical staff had
listed Palmer's current medications and indicated that he
had a low bunk permit. See R. 161-6.

After
the intake screening, Palmer was taken to his cell by
correctional officers. The bottom bunk in his assigned cell
was already occupied. Palmer testified he told a correctional
officer about his low bunk permit from Shawnee, but the
officer told Palmer there was nothing he could do because
Palmer did not have the permit with him. R. 161-2 at 13
(Palmer Dep. 47). A correctional officer (either the same one
or a different one who was a “lieutenant”)
informed Palmer he needed to get a new permit from
“medical, ” even though it was his (Palmer's)
understanding that his “low bunk pass from Shawnee
would apply.” Id. at 16-17 (Palmer Dep.
61-62). Palmer testified he never asked his cell mate to
switch bunks with him because he believed it was the
correctional officer's job to do so. Id. at 12
(Palmer Dep. 45). When asked about the possibility of putting
his mattress temporarily on the floor of the cell until a new
medical permit was issued to him, Palmer testified “Why
would I?” Id. at 12-13 (Palmer Dep. 45-46).

In the
days following his arrival at the NRC, Palmer claims to have
submitted two requests for medical treatment to obtain a low
bunk permit to replace the Shawnee one that the correctional
officers were not honoring. He placed the requests in the
door for a correctional officer to pick up and turn in
because “[a]t NRC, you're in the cell 24 hours a
day.” Id. at 23 (Palmer Dep. 87). The record
does not contain any additional information regarding what
happened to Palmer's sick call requests, although it is
undisputed that Palmer was not taken to see a doctor before
the date of the incident, which occurred ten days after his
arrival at the NRC. On the morning of January 22, 2012,
Palmer was attempting to get out of his bunk when he fell
trying to lower himself without the aid of a ladder,
[4]
causing injury to his right knee. IDOC medical records state
that Palmer's knee showed no signs of trauma after the
fall. Palmer, on the other hand, claims that the fall caused
damage to his knee requiring knee replacement surgery, and he
has submitted expert medical testimony to support that claim.

Discussion

A.
Eighth Amendment

Courts
have “routinely dismissed” Eighth Amendment
claims based on the lack of a ladder to access the top bunk,
“finding that this condition does not pose a serious
risk of harm.” Richard v. Ill. Dep't of
Corr., 2016 WL 2941210, at *5 (S.D. Ill. May 20, 2016)
(collecting cases); see also Blue v. Baenen, 2016 WL
8711729, at *9 (E.D. Wis. May 20, 2016) (same). But the issue
here is different because Palmer has only one hand and had a
permit from Shawnee indicating that he needed to be assigned
a low bunk for medical reasons. Palmer argues that Franz
violated his Eighth Amendment right to be free from cruel and
unusual punishment by failing to take steps to ensure he was
issued a low bunk permit during his stay at the NRC.

“[D]eliberate
indifference to serious medical needs of prisoners
constitutes the ‘unnecessary and wanton infliction of
pain, ' proscribed by the Eighth Amendment. This is true
whether the indifference is manifested by prison doctors in
their response to the prisoner's needs or by prison
guards in intentionally denying or delaying access to
medical.” Estelle v. Gamble, 429 U.S. 97,
104-05 (1976) (internal citations and footnote omitted). A
claim of deliberate indifference to a serious medical need
contains both an objective and a subjective component. A
prisoner first must establish that his medical condition is
“objectively, ‘sufficiently serious.'”
Farmer v. Brennan, 511 U.S. 825, 834 (1994)
(citation omitted). If he establishes the objective
component, he then must establish that prison officials acted
with “a ‘sufficiently culpable state of mind,
” i.e., that they both knew of and disregarded
an excessive risk to inmate health. Id. at 834, 837;
see Greeno v. Daley, 414 F.3d 645, 653 (7th Cir.
2005). Franz argues that neither component is met here.

1.
Serious Medical Need

In the
recent case of Estate of Simpson v. Gorbett, 863
F.3d 740 (7th Cir. 2017), the Seventh Circuit addressed the
objective component of an Eighth Amendment claim in the
context of an accident involving an inmate's assignment
to a high bunk. The inmate in Simpson “was
intoxicated when he reported to [a county] jail to serve his
weekend stay, prompting officers initially to place him in a
holding cell. After they thought he was sober, they assigned
him to an upper bunk in a two-person cell, even though he was
obviously obese. While sleeping, [the inmate] went into
convulsions and fell off the bunk on to the hard concrete
floor. He died from his injuries.” Id. at 742.
The inmate's estate brought an Eighth Amendment claim
against five officers and the sheriff. In affirming the
district court's grant of summary judgment in favor of
the defendants, the Seventh Circuit said that the question
posed was not whether “top bunks[ ] are
unconstitutional for all inmates, ” but whether
“the assignment of a morbidly obese man to this narrow,
upper bed” was. Id. at 746. Nevertheless, the
court said, the “argument that the bunk was
unreasonably dangerous to [the obese inmate] rest[ed] almost
entirely on hindsight-that is, what happened after [the
inmate] had been sleeping in apparent safety for several
hours, when he suddenly had convulsions, tumbled off, and
suffered his fatal injury.” Id. Because the
inquiry was objective, the court said it could not
“base [its] conclusion exclusively on what came to
pass, ” and, given the record, could not
“conclude that [the inmate's] bunk assignment
objectively was so dangerous that it denied [the inmate]
‘the minimal civilized measure of life's
necessities.'” Id. (citations omitted).

This
case is distinguishable from Simpson because of the
fact that Palmer already had been issued a Shawnee medical
permit requiring a low bunk.[5]See Greeno, 414 F.3d at
653 (a medical need is an objectively serious condition if it
has “been diagnosed by a physician as mandating
treatment”). Moreover, Palmer's physical disability
warranting the Shawnee low bunk permit was obvious. The
Simpson court “assume[d] that there are some
circumstances where a small, elevated bed might pose a
‘substantial risk of serious harm' to an
inmate's health or safety.” 863 F.3d at 745-46
(quoting Farmer, 511 U.S. at 834). A jury could
conclude based on Palmer's missing left hand and the
existence of a medical permit that this is one of them.
See, e.g., Bolling v. Carter, 819 F.3d 1035, 1036
(7th Cir. 2016) (implicitly recognizing that an inmate who
had been issued a low bunk permit has a serious medical
need).

Franz
argues that Palmer's missing hand does not meet the
definition of a serious medical condition because Palmer did
not need treatment for his arm. SeeGayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010)
(defining a serious medical condition as one “that
would result in further significant injury or unnecessary and
wanton infliction of pain if not treated.”)
(emphasis added). But the Seventh Circuit did not intend to
use the word “treated” in the limiting sense
suggested by Franz, as the test is sometimes expressed as
being a medical condition requiring a “doctor's
attention.” Greeno, 414 F.3d at 653
(emphasis added). Although Palmer's medical condition may
not have required treatment per se, it did require
accommodation. For Palmer to receive that accommodation, he
needed to be examined by a physician or other authorized
medical personnel, [6] who then would determine based on medical
judgment whether to issue a permit for a low bunk
assignment.[7] In short, a reasonable jury could find
that an inmate who a doctor has recognized is in need of a
medical permit meets the objective test of a serious medical
condition. Franz's argument to the contrary is rejected.

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